The Democrats’ predicted “Blue Wave” swept unevenly across the country last Tuesday, washing aside suburban Republicans and handing Democrats the House of Representatives, but falling short against conservative rural strongholds, especially in the Senate. With several races (mostly in California) remaining uncalled, Democrats have gained thirty-two seats in the House of Representatives, converting the Republicans’ 235-193 majority to a Democratic majority of 227-200. But Republicans swept aside several vulnerable Senate Democrats, taking seats in Florida (subject to recount), Missouri, Indiana, and North Dakota while losing Sen. Dean Heller’s seat[1] in Nevada and the seat left open by Sen. Jeff Flake’s retirement in Arizona. This two-seat gain increases Republicans’ majority in the Senate from 51-49 to 53-47.

Democrats also had a good night at the state level, flipping seven governorships, including the seat held for two terms by liberal nemesis Gov. Scott Walker (R-Wisc.) and the open Kansas race in which notorious immigration scourge Kris Kobach was the Republican nominee. Republicans won wide victories in the liberal bastions of Massachusetts, Maryland, and Vermont, while managing to take back the Alaska governor’s mansion from the independent who won it in 2014. Republicans hold twenty-two state trifectas (that is, control of both houses of the legislature and the governor’s seat), Democrats hold fourteen, and thirteen states still have divided government (with Mississippi too close to definitively call). According to election law expert and UVA Law Professor Michael Gilbert, the result of the governors’ races will make the redistricting process more complicated in 2020 and increases the chances states will be gerrymandered in a bipartisan fashion to favor incumbents rather than the one-sided partisan redistricting more common in recent years.

In Virginia, three Republican House incumbents lost: Reps. Barbara Comstock (R-Va. 10), Dave Brat (R-Va. 7), and Scott Taylor (R-Va. 2) were defeated by Democratic challengers. In the open seat covering Charlottesville vacated by Rep. Tom Garrett (R-Va. 5), journalist Leslie Cockburn (D) came up short against distillery owner Denver Riggleman (R). Cockburn carried Charlottesville and Albemarle County, but Riggleman swept to a six-point victory by carrying most of the rest of the district, which stretches from the North Carolina border to the Washington, D.C. exurbs. Meanwhile, Sen. Tim Kaine (D-Va.) swept to a fifteen-point victory over Prince William County Board of Supervisors Chairman Corey Stewart, winning commanding majorities in the Northern Virginia D.C. suburbs and flipping the traditionally Republican Richmond suburbs of Chesterfield and Henrico Counties. Stewart ran up strong totals in rural Southwest Virginia and the ruby-red Shenandoah Valley, though Kaine won the cities of Staunton, Harrisonburg, Waynesboro, Lynchburg, and Blacksburg. Stewart came under heavy criticism for calling anti-Semite Paul Nehlen his “hero” and for embracing Alabama Chief Justice Roy Moore after allegations that Moore had sexual relations with various underage girls. Meanwhile, about 40 UVA Law students got involved in monitoring polls across Virginia. Organized through the Democratic Party of Virginia, these students, including Molly Cain ’20, provided precinct information to voters, assisted those who cast provisional ballots, and kept track of wait times. Cain emphasized the importance of such work amid voter-eligibility and ballot-counting challenges across the U.S.

Partisan shifts across the country mirrored those of Virginia. Republicans won Senate seats in Indiana, Missouri, North Dakota, and (probably) Florida by winning huge victories in rural areas, with increased turnout from the last midterm in 2014. Democrats defeated Republican House incumbents in areas such as Oklahoma City, the Chicago, Dallas, and Houston suburbs, and exurban Los Angeles. Also of note, Democrat Lucy MacBeth defeated Rep. Karen Handel (R) in the Atlanta suburbs, after Democratic challenger Jon Ossoff lost in a 2017 special election to replace Secretary of Health and Human Services Tom Price in the same seat.

The night started off slow for Democrats as their candidates for Florida Governor and U.S. Senator—predicted by the polls to win by three to five points—fell behind their Republican challengers amid off-the-charts rural turnout and a weak showing among Miami Hispanics. But Democratic wins piled up; Republican House seats fell across the Upper Midwest, ensuring a Democratic majority before California had even begun to count. According to Law Democrats President George Rudebusch ’20, “What we saw in the 2018 midterms was America taking an affirmative and resounding step to the left. Although a slanted map put the Senate majority out of reach, Democrats have much to rejoice. We took control of the House for the first time in eight years. We elected more minority candidates to Congress than ever before, including a historic number of women. We netted seven new governorships. We expanded Medicaid coverage to another 300,000 Americans in Idaho, Nebraska, and Utah. We voted to increase the wages of nearly 1 million workers. And we restored voting rights for 1.4 million Americans in Florida.” Law Republicans President Max Wagner ’19 disagreed. “Last week’s midterms were a success for the Republicans. Democrats were heavy favorites to take the House. Their gains in the chamber were well within the range of a normal midterm election. Republicans have expanded their control of the Senate, which was the more important chamber for Republicans at this time.”

Several of the yet-undecided races have the potential to shift the narrative and analysis of the election. Eight House races and one Senate race remain too close to call. In Florida, recounts remain underway for U.S. Senator and governor. Republican Rick Scott (R) leads Sen. Bill Nelson (D) by 12,562 votes, or 0.15 percent. Professor Gilbert described the situation as feeling very similar to the 2000 Florida recount that preceded Bush v. Gore. The Florida Secretary of State ordered a machine recount by November 15, and Florida law requires a manual recount if the election is within 0.25 percent. However, Palm Beach County Supervisor of Elections already announced it is impossible for Palm Beach to finish its recount by then, drawing the ire of Scott and Republicans. Scott and others (including the President) have made unsubstantiated claims of voter fraud, while Democrats have been on the defensive about Broward and Palm Beach Counties’ lack of compliance with transparency laws that require public disclosure of election information, including number of ballots on hand. Professor Gilbert finds these unsubstantiated claims of fraud to be destructive, but said the claims are more of a reflection of who is ahead rather than a partisan position. Democrat election law attorney Marc Elias, head of Perkins Coie’s Political Law practice group, is representing the Nelson campaign and suing the Florida Secretary of State.[2] Elias has been tweeting out frequent updates; readers may follow @marceelias for the latest on his efforts. In the governor’s race, Rep. Ron DeSantis (R) remains in the lead by 33,684 votes over Tallahassee Mayor Andrew Gillum (D) and the machine recount will proceed until Thursday.

The midterms were largely good for UVA Law alums; of the eight who ran, at least six won.[3] Sen. Angus King ’69 (I-Me.) retained his Senate seat, defeating his challenger Eric Brakey (R) by 19.6 percentage points. Sen. Sheldon Whitehouse ’82 (D-R.I.) easily won his third term. Sen. Bill Nelson ’69 (D-Fla.) remains locked in the race with Governor Rick Scott (R). Rep. Sean Maloney ’92 (D-N.Y. 18) won his fourth term in a district that twice voted for President Obama and then went for President Trump in 2016. On Sunday, November 10, Rep. Maloney announced his candidacy to lead the DCCC. Rep. Sheila Jackson Lee ’75 (D-Tex. 18) easily kept her seat and will go on to her twelfth term. Rep. Don McEachin ’86 (D-Va. 4) won his first full term after winning the seat in a 2017 special election. In statewide races, Ken Paxton ’91 (R) won re-election as Texas’s attorney general. Jeff Bartos ’97 (R) lost his race for Pennsylvania lieutenant governor.

Amid the tumult and upheaval that is the era of President Donald Trump, the midterm elections provided a surprisingly predictable result: Democrats re-took the House of Representatives, just as Republicans did in President Obama’s first midterm in 2010 and in President Clinton’s first midterm in 1994. And while Republican gains in the Senate should not be discounted—especially their rural surge and their gains in important presidential states like Florida—those gains can more easily be credited to the difficult map faced by Democrats, who defended twenty-three seats to the Republicans’ ten. The partisan makeup of the new Congress will now be a mirror image of the Republican House/Democratic Senate that President Obama faced beginning in 2011, a parallel that should worry President Trump if he has grand designs on passing a legislative agenda. And civic advocates may rejoice: Midterm turnout, at close to half the eligible population, was the highest in nearly fifty years. Whatever else is true of the current era, it is not one marked by quiescence or apathy.

[1] Sen. Dean Heller (R) lost to Rep. Jacky Rosen (D). Rosen got on the Democratic Party’s list of possible Congressional candidates for Nevada’s Third District in 2015, at the suggestion of then-state district judge Elissa Cadish—Rosen was one of Cadish’s bridesmaids. Political reporter Jon Ralston said there was “something Shakespearean” at Heller losing to Rosen, considering Heller blocked Cadish’s 2013 federal judge nomination “in an extraordinary act of demagoguery and pettiness.” Jon Ralston, Predictions for Thursday, The nevada independent, (Nov. 4, 2018 1:45 AM), https://thenevadaindependent.com/article/predictions-for-tuesday.

[2]Of the twenty-six elections that have gone to a recount since 2000, only three changed the results. Elias represented the candidates in two out of those three elections.

[3]This list is the product of a good-faith, but not necessarily exhaustive, search. Please send an email to editor@lawweekly.org if you know of any UVA Law alums we missed so we can include them in next week’s newspaper. Also, many thanks to Diddy Morris for her contributions!